የመመሪያው አላማና ግብ
በመመሪያው አንቀጽ 3 የሚከተለው ተደንግጎ እናገኛለን
አንቀጽ 3 . የመመሪያው አላማና ግብ፣
1. የመመሪያው አላማ በወንጀል ፍትህ ስርአቱ ግልጽነትና ተጠያቂነትን ባረጋገጠ መልኩ ውጤታማና ተገማችነት ያለው ቅጣት የሚሰጥበትን ስርአት በመመስረት ወንጀል እንዳይፈጸም መከላከል ነው፡፡
2. መመሪያው የሚከተሉት ግቦች ይኖሩታል፡፡
ሀ. በተቀራራቢና ተመሳሳይ የወንጀል ጉዳዮች መካከል ተቀራራቢነት ያለው የቅጣት አወሳሰን (ወጥነትን) ማረጋገጥ፣
ለ. እንደወንጀሉ ክብደትና አደገኛነት መሰረት ተመጣጣኝ ቅጣት ያለው የቅጣት አወሳሰን ማረጋገጥ ነው፡፡
2. የቅጣት እርከን ሰንጠረዥ
በመመሪያው ቅጣትን ለመወሰን ዝርዝር ሰንጠረዦች ተዘጋጅተዋል፡፡ እነዚህም ነጻነትን የሚያሳጡ ቅጣት ሰንጠረዥ እና የገንዘብ መቀጮ ሰንጠረዥ በሚል ተከፋፍለዋል፡፡
2.1. ነጻነትን የሚያሳጡ ቅጣት እርከን ሰንጠረዥ
ይህ በመመሪያው አባሪ አንድ ሆኖ ተያይዞ የሚገኝ ሰንጠረዥ ሲሆን የወንጀል ሕጉን ዝቅተኛ የቅጣት መነሻ (1 ቀን የግዴታ ስራ) እና ከፍተኛውን የሞት ቅጣት መሰረት በማድረግ 39 ደረጃዎች ያሉት የቅጣት እርከኖች እንዲኖሩት ሆኖ የተዘጋጀ ነው፡፡
አላማው አሁን በወንጀል ህጉ ያለውን በመነሻና በመድረሻ መካከል ያለውን ሰፊ ፍቅድ ስልጣን (discretion) በማጥበብ በወንጀል ህጉ አንቀጽ 88 ንኡስ አንቀጽ 4 እንደተመለከተው ወጥነትንና ተመጣጣኝነትን ማረጋገጥ ነው፡፡
ሰንጠረዡ ሲዘጋጅ ለእያንዳንዱ የቅጣት እርከን መነሻና መድረሻ ያለው ሲሆን፣ የሚከተሉትን መሰረተ ሀሳቦች መሰረት ባደረገ መልኩ የተዘጋጀ ነው፡፡
- የቅጣት መነሻቸው ከዝቅተኛው ጀምሮ ከፍ እያለ ሲሄድ በመነሻውና በመድረሻው መካከል ፍቅድ ስልጣን (range) እንዲኖር ሆኖ ተዘጋጅቷል፡፡ (ሬንጁ ዝቅተኛው 3 ወር ሲሆን ከፍተኛው 5 አመት ነው፡፡
የቅጣት እርከን 1 ሬንጁ 3 ወር(በትክክል 2 ወር ከሃያ ቀን) ሆኖ ደረጃ በደረጃ እያደገ ይሄዳል፡፡
ከቅጣት እርከን 12 ማለትም (ከ2 አመት- 2 አመት ከ6 ወር) ጀምሮ ሬንጁ ከስድስት ወር ያላነሰ ነው፡፡
ከእርከን 21 ማለትም (ከ5 አመት መነሻ) ጀምሮ ሬንጁ ከአንድ አመት ያላነሰ ነው፡፡
ከእርከን 29 ማለትም (ከ10 አመት መነሻ) ጀምሮ ሬንጁ ከሁለት አመት ያላነሰ ነው፡፡
ከእርከን 34 ማለትም (ከ15 አመት መነሻ) ጀምሮ ሬንጁ ከሶስት አመት ያላነሰ ነው፡፡
በየደረጃው ያለው የቅጣት እርከን መነሻ ሲቀመጥ፣ ከቅጣት እርከኑ ዝቅ ብሎ ከነበረው የቅጣት እርከን አማካይን መነሻ
በማድረግ የቅጣት መነሻና መድረሻው ተወስኗል፡፡
ለዚህ መመሪያ አላማ የአንድ ቀን እስራት ከአንድ ቀን (8 ሰአት) የግዴታ ስራ ጋር ተመጣጣኝ ተደርጎ ተወስዷል፡፡
በቅጣት ማቅለያ ጊዜ የእስራት ቅጣት ወደመቀጮ እንደሚቀየር በወንጀል ሕግ አንቀጽ 179 የሚደነግግ በመሆኑ ወደመቀጮ
ሲቀየር ስንት ሊሆን እንደሚችል በሚያሳይ መልኩም የቅጣት እርከኑ ተዘጋጅቷል፡፡
2.2. የገንዘብ መቀጮን የሚመለከተው ሰንጠረዥ፣
የወንጀል ህጉን አንቀጽ 90 መሰረት በማድረግ የገንዘብ መቀጮም ደረጃ ወጥቶለታል፡፡
መነሻ ያደረገውም በአንቀጽ 90(1 እና 2) መሰረት ነው፡፡
ዝቅተኛ መነሻ ግን ለሁሉም ተመሳሳይ በህጉ የተመለከተው ነው፡፡ (10 ብር እና 100 ብር)
በዚህ መሰረት የገንዘብ መቀጮ ከዝቅተኛው ጣሪያ 1000 ብር እስከ ብር 500 ሺህ ሊደርስ በሚችል መልኩ
3. መመሪያው የሚመራባቸው አጠቃላይ ድንጋጌዎች፣
- በወንጀል ሕግ 189 ፍርድ ቤቶች ቅጣትን ሲወስኑ መጀመሪያ ማክበድ እንደሚገባቸው ቀጥለው ደግሞ ማቅለያ ምክንያቶችን መሰረት በማድረግ ማቅለል እንዳለባቸው ይደነግጋል፡፡ ይህም ቅጣቱን ለማክበድ በመጀመሪያ መነሻ ቅጣት ሊወስኑ እንደሚገባ ያመለክታል፡፡ ስለሆነም ዳኞች ማክበጃና ማቅለያ ምክንያቶችን መሰረት አድርገው ቅጣት ከመወሰናቸው በፊት መነሻ ቅጣት ማስቀመጥ እንደሚገባቸው ያመለክታል፡፡ ስለሆነም ዳኞች በቅድሚያ መነሻ ቅጣት ሊያስቀምጡ እንደሚገባ መመሪያው ያስገድዳል፡፡
- በወንጀል ህጉ አንቀጽ 88 ንኡስ አንቀጽ 4 ጠቅላይ ፍርድ ቤት በቅጣት አወሳሰን ወጥነትና ትክክለኛነትን ለማረጋገጥ መመሪያ እንደሚወጣ ይደነግጋል፡፡ ከዚህ በመነሳትም ወንጀሎችን በተመሳሳይ ደረጃ የሚያስቀምጣቸውን ባህርይ መሰረት በማድረግ ለተመሳሳይ ወንጀሎች ተመሳሳይና ተቀራራቢ ቅጣት መቅጣት፡፡ (ወጥነት)፣ እንዲሁም የወንጀል ፍሬነገሩ ተመሳሳይ ቢሆንም እንደወንጀሉ ከባድነትና አደገኛነት ደረጃዎችን በማውጣት ቅጣት መቅጣት ( ተመጣጣኝነት/ትክክለኛነት) ለማረጋገጥ እንዲቻል ለወንጀሎች የወንጀል ደረጃ ሊወጣላቸውና በዚህ መሰረት ቅጣቱ ሊወሰን እንደሚገባ ያስቀምጣል፡፡
- ህግ አውጪው ለእያንዳንዱ የወንጀል ድርጊት የቅጣት መነሻና መድረሻ ያስቀመጠ ሲሆን፣ ይህም እንደወንጀሉ ሁኔታ ከመነሻው ጀምሮ ቅጣቱን ሊወስን እንደሚችል የሚያሳይ ነው፡፡ ስለሆነም በወንጀሉ ከባድነት ወይም አፈጻጸም ቀላል የሚባለው ለወንጀሉ ከተቀመጠው መነሻ ቅጣት ጀምሮ እንደወንጀሉ ከባድነት ደረጃ በደረጃ እያደገ በሚሄድ መልኩ ቅጣቱ ሊወሰን እንደሚገባው ያስቀምጣል፡፡
- ህግ አውጪው በወንጀል ልዩ ክፍሉ ለእያንዳንዳንዱ ወንጀል ያስቀመጠው ጣሪያ ላይ የሚደረሰው ጠቅላላ ማክበጃ ምክንያቶች ሲኖሩ እንደሆነ ያመለክታል፡፡ ስለሆነም ማክበጃ ምክንያቶችን መሰረት አድርጎ ቅጣቱ ከመክበዱ በፊት የሚቀመጠው መነሻ ቅጣት የወንጀሉ ከባድነት ከፍ ያለ ቢሆንም (በህጉ ካልተወሰነ በስተቀር (ለምሳሌ ያህል በሞት ይቀጣል፣ በእድሜ ልክ እስራት ይቀጣል በሚል መልኩ ካልተቀመጠ) ጣሪያው ላይ አይሆንም፡
ቅጣቱ እንዲከብድ ህጉ በደነገገ ጊዜ (84) ለቅጣቱ ማክበጃ የሆኑትን ምክንያቶች አይነትና ብዛት እንዲሁም ወንጀለኛው የፈጸመውን ጥፋት ከባድነት በማመዛዘን ፍርድ ቤቱ በዚህ ሕግ ልዩ ክፍል በተመለከተው አግባብነት ባለው ድንጋጌ ከተወሰነው ቅጣት ጣሪያ ሳያልፍ ቅጣቱን ይወስናል፡፡ (አንቀጽ 183)
- በተመሳሳይ የቅጣት እርከን ላይ ለሚገኙ ወንጀሎች በቅጣት ማክበጃና ማቅለያ መሰረት የሚኖረው ጭማሪ ወይም ቅነሳ ተመሳሳይ ሊሆን ይገባል፡፡
- ዳኞች በተቀመጠው ፍቅድ ስልጣን (range) ከመነሻው እስከ መድረሻው በመመሪያው ያልተመለከቱ ሌሎች ምክንያቶችን መሰረት በማድረግ ለመወሰን ይችላሉ፡፡
- መመሪያው በወንጀል ህጉ የተቀመጡትን የቅጣት አወሳሰን ድንጋጌዎች ለማስፈጸም የሚወጣ በመሆኑ፣ በወንጀል ህጉ ውስጥ የተቀመጡትን አጠቃላይ መርሆዎችና ድንጋጌዎች መሰረት አድርጎ እየተተረጎመ ሊሰራበት እንደሚገባ ያስቀምጣል፡፡
ቅጣትን የሚመለከቱ የወንጀል ህጉ ድንጋጌዎች ይዘት
በወንጀል ህጉ ሁለተኛ ታላቅ ክፍል (ልዩ ክፍል) ለእያንዳንዱ የወንጀል ድርጊት መነሻና መድረሻ ቅጣት ተቀምጠዋል፡፡ አብዛኛዎቹ የቅጣት መነሻና መድረሻዎች የሚከተሉትን ይመስላሉ፡፡
- ከ1 አመት እስከ 10 አመት
- ከ3 አመት እስከ 10 አመት
- ከ5 አመት እስከ 15 አመት
በህጉ ልዩ ክፍል ከተመለከቱት ቅጣቶች በተጨማሪ አጠቃላይ የቅጣት አወሳሰን ድንጋጌዎች አሉ፡፡
- አንቀጽ 88 (የቅጣቶች አወሳሰን)
- አንቀጽ 84 (ጠቅላላ የቅጣት ማክበጃዎች)
- አንቀጽ 82 (ጠቅላላ የቅጣት ማቅለያዎች)
- አንቀጽ 85 (ልዩ የቅጣት ማክበጃዎች)
- አንቀጽ 83 (ልዩ የቅጣት ማቅለያዎች)
- ከአንቀጽ 179-189 (ቅጣቱ ሲከብደና ሲቀል ስለሚጣለው ቅጣት መጠን)
- ከአንቀጽ 190-200 (ቅጣትን ስለመገደብ) ናቸው፡፡
እነዚህን የተለያዩ ድንጋጌዎች መሰረት አድርጎ ቅጣት እንዴት ይወሰናል? በወንጀል ህግ አንቀጽ 189(1) የሚከተለው ተደንግጎ እናገኛለን፡፡
‹በአንድ ወንጀል ላይ ቅጣት የሚያከብዱና የሚያቃልሉ ጠቅላላ ምክንያቶች በተደራረቡ ጊዜ ፍርድ ቤቱ አስቀድሞ ማክበጃ ምክንያቶቹን ከግምት በማስገባት ያከብድና ቀጥሎ የሚያቃልሉትን ምክንያቶች መሰረት አድርጎ ቅጣቱን ያቃልላል›
ከዚህ መረዳት እንደምንችለው መጀመሪያ ለማክበድ ከየት ይነሳል? የሚል ጥያቄ እንድናነሳ ያደርገናል፡፡ ስለሆነም በግልጽ ባይቀመጥም ዳኛው፣
- በቅድሚያ መነሻ ማስቀመጥ እንደሚኖርበት፣
- ቀጥሎ ማክበጃ ምክንያቶች ከአሉ ቅጣቱን ማክበድ እንደሚኖርበት፣
- ቀጥሎ ማቅለያ ምክንያቶች ከአሉ ቅጣቱን ማቅለል እንደሚኖርበት፣
- መነሻው ስንት ይሁን? በሕጉ መልስ የለም፡፡
- ማክበጃዎች ሲኖሩ በምን ያህል ሊከብድ ይገባል ? በሕጉ መልስ የለም፡፡
- ማቅለያዎች ሲኖሩ በምን ያህል ሊቀል ይገባል ? በሕጉ መልስ የለም፡፡
ስለሆነም በወንጀል ህጉ የተቀመጡትን የቅጣት ድንጋጌዎችና ስለቅጣት አወሳሰን የተቀመጡት ድንጋጌዎች በፍርድ ቤት የሚሰጡ ቅጣቶች፣
- ትክክለኛነት ያለው፣
ለማድረግ የሚያስችሉ አይደሉም፡፡
የቅጣት ውሳኔዎች ግምገማ
ቅጣት የተሰጠባቸው መዝገቦችን ስንመለከት፣
- ቅጣቱ ከብዶ ይወሰን፣
- ተመጣጣኝ ቅጣት ይሰጠው፣
ከሚል ባለፈ ከብዶ ሲባል ከባዱ ምን ያህል እንደሆነ፣
- መነሻው ስንት ሆኖ ሊከብድ እንደሚገባ፣
- ተመጣጣኝ የሚሆነው ምንእንደሆነ ፣
በተከሳሽ በኩል የሚቀርቡ የቅጣት አስተያየቶችም ጥቅል ሆነው ከሚቀርቡ በስተቀር ተመሳሳይ ችግር ያለባቸው ናቸው፡፡ዳኛው ቅጣትን ሲወስንም፣ ቅጣትን ለማክበድ፣
- የወንጀል ሪከርድ አለው
- የወንጀል አፈጻጸሙ አደገኛነት አለው፣
- ድርጊቱ የተፈጸመው በአፍቅሮ ንዋይ በመሆኑ የሚሉ ምክንያቶችን በመጥቀስ፣
- የወንጀል ሪከርድ የለውም ስለሆነም አደገኛ አይደለም፡፡
- የቤተሰብ አስተዳዳሪ ነው፡፡ ወዘተ የሚሉ ምክንያቶችን በመጥቀስ፣
ይሁንና ዳኞች እነዚህን ምክንያቶች ይጥቀሱ እንጂ፣
- በየትኛውም መዝገብ ቅጣቱን ለመወሰን መነሻው ስንት መሆን እንዳለበት ተመልክቶ አይታይም፡፡
- በማክበጃነት የቀረቡትንና በማቅለያነት የቀረቡትን ምክንያቶች የሚቀበለውና የሚቀበሉትንና የማይቀበሉትን ከለዩ በኋላ፣ ከምክንያቶቹ ጋር ግንኙነቱን ለማስረዳት በማይቻል መልኩ በጥቅሉ የቅጣቱ መጠን ይቀመጣል፡፡
- መነሻ የቅጣት መጠኑ ስንት እንደሆነ፣
- በማክበጃነት የተቀመጡት ምክንያቶች ቅጣቱን በማክበድ ያላቸው አስተዋጽኦ እንዲሁም
- ማቅለያ ምክንያቶች እንዴት አገልግለው ቅጣቱ እንደቀለለ፣
ከዚህ አጠቃላይ ግንዛቤ በመነሳት በአገራችን ቅጣት አወሳሰን ምክንያታዊነት የጎደለው፣ በእርግጥም የተጣለው ቅጣት አግባብነት ያለው መሆኑን ለማስረዳት አይቻልም፡፡ በዚህም ምክንያት፣
በአንድ ዳኛ በተለያየ ጊዜ ወይም በተለያዩ ዳኞች ተቀራራቢና ተመሳሳይ ለሆኑ ወንጀሎች የሚሰጡ የተለያዩ ቅጣቶች መኖራቸው፣
ከዚህም የተነሳ በቅጣት አወሳሰን ተገማችነት የሌለው መሆኑ፣
ቅጣት አወሳሰን ግልጽነት የሌለውና በፍትህ አካላቱ ባለሙያዎች ላይ ተጠያቂ ለማድረግ የማያስችል ሆኖ እናገኘዋለን::
Although punishment has been a crucial feature of every legal system, a widespread disagreement exists over the moral principles that can justify its imposition.
One fundamental question is why and whether the social institution of punishment is warranted. The second question concerns the necessary conditions for punishment in particular cases. The third relates to the degree of severity that is appropriate for particular offenses and offenders.
Since punishment involves pain or deprivation that people wish to avoid, its intentional imposition by the state requires justification. The difficulties of justification cannot be avoided by the view that punishment is an inevitable adjunct of a system of criminal law.
The question: "what are the rationales behind punishment?’’ remains unanswered. This question will soon take us to the theories of punishment. Generally, punishment contributes to the preservation of public order through inflicting the wrong doer who is expected to behave in the future to become a good citizen and to inspire fear in any one "who witness the punishment of wrong doer, and to make them prudent." This is the primary rational of punishment.
There are theories of punishment of which the following are generally been regarded as the most important
It is the oldest of the rationales for punishment tracing its root to the Bible. For instance Leviticus 24:17-22 reads:
" when one man strikes another and kills him ,he shall be put to death … when one injures and disfigures his fellow country man, it shall be done to him as he has done; fracture for fracture, eye for eye, tooth for tooth."
Retribution is often assimilated to revenge, but a public rather than a private one. Retribution is based on the principle that people who commit crimes deserve punishment. In that sense, the theory is backward looking: the justification for punishment is found in the prior wrong doing.
Retribution theory punishes the offenders because they are deserving of punishment. It says to the offenders: "you have caused harm to society; now you must pay back society for that harm. You must atone for your misdeeds.
Implicit in retribution is the condemnation or denunciation of both the offender and the offending behavior.
Retribution, however, is not in a kind. Society cannot rape rapist or steal from thief, although in some countries death penalty is exacted for murder.
Instead, the law tries to convert the offence into a common currency to impose a sentence which is proportional to the harm caused.
In this regard, it might be observed that retribution, with its emphasis on proportional punishment, provides a basis for the grading of offences.
Deference is one of the several rationales of sentence. It is described as 'consequentionalist' in the sense that it looks into the preventive consequence of sentence. It relies on the threats and fear though sentencing. Deterrence is based on the belief that crime is rationale and can be prevented if people are afraid of penalties.
There are two types of deterrence; namely General deterrence and specific deterrence.
Knowledge that punishment will follow crime deters people from committing crime, thus reducing future violations of right and the unhappiness and insecurity they would cause.
It aims at deterring other people who witness punishment and like minded with the offender, from committing this kind of offence.
It makes other people prudent by inducing the public to refrain from criminal conduct by using the defendant as an example of what will befall a person who violated the law.
J. Bentham, the main proponent of this theory argues that all punishment is pain, and should therefore be avoided, however, it might be justified if the benefit in terms of general deterrence would outweigh the pain inflicted on the offender punished and if the same benefits could not be achieved by non-punitive methods
Sentence should therefore be calculated to be sufficient to deter other from committing this kind of offence, no more no less.
A goal of criminal sentencing that seeks to prevent a particular offender from engaging in repeated criminality. The actual imposition of punishment creates fear in the offender that if the repeats his act, he will be punished again.
Adults are more able than small children to draw conclusions from the punishment of others, but having a harm befall oneself is almost always a sharper lesson than seeing the harm occur to others. To deter an offender from repeating his actions, a penalty should be severer enough to outweigh in his mind the benefits of the crime.
For the utilitarian, more severe punishment of repeat offenders is warranted partly because the first penalty has shown itself ineffective from the stand point of individual deterrence.
Incapacitation is the use of imprisonment or other means to reduce the likelihood that an offender will be capable of committing future offenses.
It makes the offender incapable of offending for substantial period of time. It is popular form of "public protection" and sometimes advanced as general aim.
This pragmatic theory argues that offenders need to be separated from the rest of the society in order to protect ordinary citizens from their committing other offences. The implicit premise is that, if not incarcerated, offender will continual in their criminal way.
In ancient times, mutilation and amputation of the extremities were sometimes used to prevent offenders form repeating their crimes.
Modern incapacitation strategies separate offenders from the community to reduce opportunities for further criminality. Incapacitation is sometimes called the " lock' em up approach’’ and forms the basis for the movement forward prison "warehousing."
It is confined to particular group, such as "dangerous" offenders, career criminals or other persistent offenders.
Capital punishments and severing of limbs could be included as incapacitation punishment. But there are formidable humanitarian arguments against such irreversible measures.
What has been claimed for incapacitating sentencing is the imposition of long, incapacitating custodial sentence on the offender deemed to be dangerous. The proponents of this theory argue that one can identify certain offenders as dangerous who are likely to commit serious offence if released into community in the near future and the risk of victims are so great that it is justifiable to detain such offender for long period.
Opponents of this theory have chief objection: over prediction. They say that incapacitating sentencing draws into its net more non dangerous than dangerous offenders. For instance, in the UK study indicates that only 9 of 48 offenders predicted as dangerous committed dangerous offences within five years of release from prison.
An equal number of dangerous offences were committed by offenders not classified as dangerous.
This indicates that there are hundreds of offenders serving discretionary sentence of life imprisonment in the UK and Wales, imposed on the ground of predicted dangerousness, and there is no way of telling, whether the predictions on which these sentences rest are not over caution in ratio of two – to – one.
Rehabilitation seeks to bring about fundamental changes in offenders and their behavior. As in the case of deterrence, the ultimate goal of rehabilitation is a reduction in the number of criminal offenses. Whereas deterrence depends upon a fear of the law and the consequences of violating it, rehabilitation generally works through education and psychological treatment to reduce the likelihood of future criminality. This theory argues that too much alternation was given for crime, and little was given to the criminals
This theory rests upon the belief that human behavior is the product of antecedent causes that these causes can be identified, and that on these basis therapeutic measures can be employed to effect changes in the behavior of the person treated.
This requires modification of attitudes & behavioral problem through education and skill training. The belief is that these might enable offenders to find occupation other than crime
If a dangerous offender needs to be located until he/she is no longer dangerous, it is the duty of the state to rehabilitate the offenders so that they can be released. That is why rehabilitation is termed as the other side of restraint coin.
This theory closely related with forms of positivist criminology which locates the causes of criminality in individual pathology or individual maladjustment whether psychiatric, psychological or social.
This theory tends to regard the offender as a person in need of help and support. At says that criminals are socially sick people who need some kinds of treatment.
Social theories of Sentencing.
They are contemporary theories. It is a dissatisfied response to the four "traditional" theories of punishment which deal with sentencing in isolation from its wider social and political setting. These theories attempt to make sentencing principles more responsive to social condition and community expectation. Three of these tendencies are:
According to Barbara, priority should be given to crime prevention and to reducing the use of custody by the penal system. Hence, changes in social policy (employment, education, housing, leisure facilities) are more important to justice than debate about proportionality of sentence.
When coming to sentencing, there should be greater concern with the problems of whole human being than particular pieces of behavior. More emphasis should be given to "rehabilitative’’ opportunities.
The first thing must be the states recognition of its duty to foster a sense of community by providing proper facilities and fair opportunities for all citizens. Once this is achieved in a community, punishment is justified as re-enforcing the value that has been decided to protect through criminal law.
John Braitwaite & Phillip Petit: Republican Theory of Criminal Justice.
The central value of this theory is dominion, defined in terms of each citizen’s ability to make life choices with a social and political framework which each citizen has participated & then to be protected in those choices.
Conflict among Different Theories
For many years, most of the literatures on the subject of punishment were devoted to advocacy of a particular theory to the exclusion of others.
Those who espoused the rehabilitation theory condemned the other theories, while, those who favored the deterrence theory denied the validity of all the others, and so on.
For instance, if criminals are sent to prison in order to be transformed to good citizen by physical, intellectual, and moral training, prison must be turning into dwelling house far too comfortable to serve as any effective deterrent to those classes from which criminals are chiefly drawn.
In the cases of incorrigible offenders, there are people incurably bad, or some men who by some vice of nature, are even in their youth beyond the reach of reformative influence.
The application of purely reformative theory therefore, would lead to astonishing and inadmissible result. The perfects system of criminal justice is based on neither the reformative nor the deterrent principle exclusively, but the result of compromise between them.
In this compromise, it is the deterrent principle which would possess predominate influence, and its advocates who have the last word. This is the primary and essential end of punishment. All others are merely secondary and accidental.
It is necessary, then, in view of modern theories and tendencies, to insist on the primary importance of deterrent element in criminal justice. The reformative element must not be overlooked.
For instance, in case of youth criminals and first offenders, chances of effective reformation are greater than that of adults who have fallen into offences.
Finally' let us evaluate the Federal Criminal Code (2004) inline with these theories. Article of the code declares the object and purpose of the Criminal Code and it reads: The purpose of the Criminal Code of the Federal Democratic Republic of Ethiopia is to ensure order, peace and security of the State, its peoples, and inhabitants for the public good.
The first paragraph of the above Article talks about the overall purpose of the Criminal Code, whereas the second paragraph states how that purpose can be attained, As it is clearly stated , the Criminal Code has been designed to attain it by preventing the commission of the crime. Prevention of the crime in turn is intended to be attained by giving due notice of the crime and penalties prescribing in the Code Due notice the public may be given to the public through publication of the Criminal Law and this may in turn gives access to all citizens and inhabitants to be aware of what acts or omissions are crimes and the respective penalties.
This does not mean that all those who are aware of the crime and penalties may always respect the law always. It is true that people may disregard and transgress the law. It is this situation the criminal Law in advance predicts and provides penalties when saying: "…should this be ineffective, providing for the punishment of criminals…"
The very Provision states the prime purpose of punishment. As it is clearly stated under this Article, the vital purpose of punishment is to deter the offender from committing fresh crime and also to deter other with inclination to commit a crime .This conclusion can be inferred from the phrases of the provision which says : …in order to deter them from committing another and make them a lesson to others….
This is also emphasized in the Preface of the Code on page IV, and it reads: Punishment can deter wrongdoers from committing other crimes; it can also serve as a warning to prospective wrongdoers.
Hence, the words lesson used in Art.1 and warning used in the Preface address the general deterrence, while the Code directly intends to deter the wrongdoers.
One can also understand the fact that the Code has also incorporated a rehabilitation theory for the Code clearly states this when it says: …by providing for their reform and measure …
The rehabilitative approach of the Code is further elaborated in the Preface page IV and it reads: …with the exception of the death sentence, even criminals sentenced to life imprisonment can be released on parole before serving the whole term; in certain crimes convicts can be released on probation with out the pronouncement of sentence or without enforcement of sentence pronounced. This helps wrongdoer to lead a peaceful life and it indicates the major place with the Criminal Law has allocated for their rehabilitation. (Emphasis supplied)
The Preface further reads: The fact that the wrongdoers instead of being made to suffer while in prison take vocational training and participate in academic education which would benefit them upon their release, reaffirms the great concern envisaged by the Criminal Code about the reform of criminals. (Emphasis supplied)
Different kinds of punishments are devised in the Code to attain the purposes. Just to mention some, simple imprisonment and pecuniary penalties have deterrent value. The same holds true for warning, reprimand, admonishment and apology from secondary penalties. (Art.122) It may also give a chance to an offender for rehabilitation.
Neither Art.1 nor the Preface makes reference to incapacitation theory. However, does not mean that the Code has not adopted this theory, because this can be inferred from the following kinds of punishment: rigorous imprisonment that may be imposed on offenders committed serious offence. As it is provided for as per Art. 108 of the Code, besides punishment rigorous imprisonment is intended to separate the offender from the community by applying strict confinement of the criminal for special protection to society. But the law tried to attain trio of purpose by rigorous imprisonment: incarceration, rehabilitation, and deterrence.
Death penalty is another typical example of incapacitation incorporated in the Code. Furthermore it has deterrence value to others with similar potential to commit a crime.
To mention secondary penalties of incapacitate nature, suspension and withdrawal of license, Art. 142 prohibition and closing of undertaking, Art.143 Measures entailing a Restriction on personal liberty, Arts.145 and the following and etc.
One can rightly say that the Ethiopian Criminal Code has followed the modern approach because it has incorporated different types of theories and different kinds of penalties are incorporated to serve these purposes. However, no single punishment is devised just to serve a single function of punishment.
A. Contents of wills
The testator can determine the contents a will he/she makes freely so long as the contents of his/her will do not violate the law or so long as they are not contrary to public moral. Art 909 lists down the contents of a will. But this should not be seen as an exhaustive list. It only gives us illustration. These enumerations may guide the testator. However, it does not mean that he/she has no power to declare dispositions that are not listed in Art 909. You can infer this from Art 909 (e). The only limitation with respect to the contents of a will is, the testator cannot declare in his will anything illegal and/or immoral.
The general rules of interpretation of statutes may be helpful also to interpret the provisions of a will. When the provisions of a will are doubtful, we may need to interpret them. The intention of the testator is a key element as far as interpretation of a will is concerned. We, therefore, have to seek the intention of the testator. The will itself may reveal this or it may be obtained from other circumstantial evidence. You should note here that getting the intention of the testator is not an easy task. You should also note that the motive of seeking the intention of the testator must not drive us to interpret the will, if the provisions of the will are clear.
B. Interpretation of wills
In Ethiopia, there is no obligation for a will to be drafted or executed by a professional person. It is thus not uncommon for wills to be made without professional advice. ‘Home-made’ wills may use colloquial and unclear language. But even where a will is prepared by a professional, ambiguities and uncertainties can result.
Courts, especially the Supreme Court may construe (or interpret) a will. Words in a will, as in any other document, are construed in their context. The essential task of the court is to give effect to the intention of the testator. But this intention is to be deduced from the words used. It is not permissible to re-write the will simply because the court suspects that the testator’s words did not really specify his/her real intentions. In order to understand the language employed by the testator, however, it is possible to ‘sit in his/her armchair’.
The general rule is that words must be construed in their usual, or literal, sense. But this is subject to the ‘special vocabulary’ of the testator. And it also must yield to the special circumstances of the testator. Suppose a testator left a legacy to ‘my wife’. He was not lawfully married, but lived with a woman in an irregular union, whom he was accustomed to call ‘wife’. The lady would surely take the legacy, despite the fact that the word ‘wife’ was a misuse of the language.
There are also well-developed ‘canons’ or rules of statutory interpretation, which assist a court in construing laws made by the Parliament. As a general rule, these canons may be applied to the construction of any document, including a will. But, since the ordinary testator is unlikely to have the same drafting skills as a Parliamentary draftsman, the courts must use these canons with more care when they apply them to interpret wills. (See Articles 910 and 911)
Legacies by universal title
Sometimes it is difficult to distinguish between universal legacies and singular legacies. The law itself does not clearly give the meaning these terms. However, it is believed that the following explanation will shed light on the meanings of these terms. You may have recognized from your reading of Art 912 (1) the following four aspects of universal legacies.
- When the testator gives his/her whole estate to one person, the property given to the beneficiary is a universal legacy and the beneficiary is a universal legatee.
- When the testator gives his/her whole estate to two or more persons, the whole estate given to these persons is a universal legacy and such persons are universal legatees.
- When the testator gives a portion of his/her estate to one person, such a portion of the hereditary estate is a universal legacy and the beneficiary of the portion of the hereditary estate is a universal legatee.
- When the testator gives a portion of his/her estate to two or more persons, such portion of the hereditary estate is a universal legacy and the persons appointed to receive such a portion are said to be universal legatees.
From the above points one can see that a universal legatee is the one who is called to the succession to receive a certain portion of the hereditary estate, not a particular thing from the succession. Therefore, a universal legatee does not know what thing he/she is going to receive from the succession.
Legacies by singular title
What is a singular and legacy and who is a singular legatee? According to Art 912(2), any other disposition (that is, outside the ones discussed above) is a singular legacy. The general tendency of the law toward singular legacies is that, singular legacies are minor testamentary dispositions usually given to non–relatives. When a single item, such as a bicycle, a television, an overcoat, a watch, a radio, etc., is given to someone, the property is a singular legacy and the one who is in a position to receive such a property in kind is a singular legatee. A universal legatee, in majority of the cases, does not know what thing he is going to receive before partition of the succession.
Fitawrari Anjullo, in his testamentary disposition made the following persons beneficiaries.
My elder son Elias shall take 40% of my estate and in addition to the 40%; he shall take my wristwatch.
My little daughter Mary shall take 40% of my estate.
Let the mule be given to my spiritual father Aba Mathewos.
The maidservant who has served me for the past 25 years shall take 2000 Birr.
An environmental organization called Green Hill Movement shall take 10% of my hereditary estate.
Elias, Mary and Green Hill Movement are universal legatees since they are allowed to receive the hereditary estate in a certain proportion. Besides, Elias is a singular legatee since he is given a wristwatch in addition to the 40% portion of the hereditary estate. That is, Elias has two capacities in this will. Aba Mathewos, who is to receive a mule, is also a singular legatee. The last singular legatee is the maidservant, who is allowed to receive 2000 Birr.
A legacy may be given to the legatee in full ownership or only the bare ownership right may be given to the legatee. In the latter case, the legatee shall be entitled to use or derive the fruit from the legacy without having the right to alienate (sell or donate) it to third persons.
Legacies and rules of partition
The contents of Art 913 may be difficult to understand. The following example shall clarify the concept in Art 913.
Assume that Ato Habtamu made the following will by fulfilling all the legal requirements:
“My elder daughter Ayantu shall take the ISUZU pickup car.”
Assume also that this is the whole content of the will of Ato Habtamu. Let us consider that Ato Habtamu has other two children (other than Ayantu). This will does not give to Ayantu the pickup car, in addition to what she partakes with her siblings. Rather, the will shall be interpreted that the pickup car shall fall in the portion allocated to Ayantu. The children of Ato Habtamuhave equal portions in the successions as there are no other dispositions in the will. Other children, since they are universal legatees, do not know what a specific property they are going to receive. Only Ayantuknows that the car falls in her portion.
A problem may arise here. That is, the value of the ISUZU car may be greater than other portion of the inheritance. If Ayantu is in need of the pickup car, she can set off the excess amount by paying sums of money to the co–heirs. For instance, if the total hereditary estate is about Birr 600, 000, including the pickup car, each of the co–heirs is entitled to receive Birr 200,000. If the value of the car is Birr 225,000, Ayantu should equalize her share with others by paying them back Birr 25,000.
You should note here that the testator could give an exclusive right to one of his/her heirs, on a certain property, in addition to what such an heir shares with other co–heirs. However, if this is the intention of the testator, he/she should express it clearly.
Effects of universal legacies
When a person is in a position to receive a universal legacy, he/she becomes a universal legatee. The appointment of a universal legatee does not follow any special formality. That is, a public or holograph will that normally fulfills the formal requirements could appoint a universal legatee. No special will with special formalities is required to appoint a universal legatee (Art. 914).
When someone is appointed as a universal legatee, he/she is assimilated to an heir–at–law. When it is said that a universal legatee is assimilated to an heir–at–law, it means that a universal legatee who is a non–heir (such as a friend, a servant, a spiritual father, a spouse, etc.) shall be treated in all respects in relation to the succession in the same manner as the legal heirs of the testator. The rights and responsibilities of such universal legatees will be similar to that of the legal heir to the testator.
The testator may make his succession to depend on certain conditions. The conditions are of two types. In the words of the Code, they are suspensive and resolutive conditions. We also call suspensive conditions as condition precedent and resolutive conditions as condition subsequent.
Suspensive condition— In the case of suspensive condition or condition precedent, the legatee shall wait until a certain time lapses or until a certain circumstance occurs. Therefore, the legatee will not be entitled to receive the bequest until the fulfillment of the specified condition. For example, the testator may order a legacy in favor of Mahlet. However, Mahlet may be in a position to receive the property upon the expiry of five years and until that time, the property would remain in the hands of specifically designated persons. The testator may even say that, Mahlet shall receive the property when someone dies. Hence, the legatee shall be entitled to take the property upon death of that specified person.
Resolutive condition— Resolutive condition or condition subsequent is a situation where the legatee brings back what he received from the succession when a certain condition is fulfilled. That is, in the case of resolutive condition, the legatee is automatically entitled to receive the bequest, unlike the case of suspensive condition. For instance, the testator may order Brook to receive some property until a certain circumstance occurs. Brook returns the property upon the occurrence of the mentioned circumstance. For example, the testator may not be happy with the flirting of his daughter with Zelalem. (Zelalem is member of a gang of robbers). The testator may order a conditional legacy to stop his daughter from marrying such a person. He may say in his will that, “my daughter shall receive four cows so long as she does not marry Zelalem”. In this case, the testator’s daughter can enjoy the bequest until she decides to marry Zelalem. Whenever she marries Zelalem, she shall restitute what she received from the succession.
You may have understood from Art 917 that the testator may impose a condition of marrying or not marrying of a specific person. However, the testator has no right of imposing, in general terms, not marrying or not remarrying. The testator cannot even impose on the legatee a condition such as not marrying or not remarrying a person who belongs to a certain race, nationality, member of a religious group, etc.
All persons who have attained the marriageable age have a constitutionally guaranteed right to marry and found a family. The FDRE Constitution in Article 34 (1) states that:
“Men and Women without any distinction as to race, nation, nationality or religion, who have attained marriageable age defined by law, have the right to marry and found a family…”
The imposition of marrying or not marrying a specific person does not affect this constitutional right. Nevertheless, the condition that imposes, in general terms, not to marry or not to remarry infringes the rights of persons. However, the testator may impose a condition of not marrying or not remarrying (See the Amharic version of the Civil Code), by giving to the legatee a usufruct right on a certain property or by giving him/her a certain amount of pension. The condition of not to marry seems to affect the rights of individuals. Nevertheless, the condition of not to remarry is usually practiced. For instance, the testator may order his wife not to remarry by giving her a usufruct right on a certain property or by giving her a pension in the form of annuity or any other appropriate form.
Charge is the order of a testator against his/her heirs and/or legatees in which he/she binds them to take some responsibility or take care of one or more persons. However, the testator cannot bind the heirs and/or legatees to give or to do something to specified persons more than the value of the legacy.
The testator may order that Ato Chala would take his (the testator’s) taxicab whose value is 60,000 birr. The testator also orders that Ato Chala shall make a monthly payment to his old mother W/ro Wude 500 Birr. Ato Chala is obliged to make the payment to W/ro Wude up to the extent of the value of the taxicab. In case Ato Chala fails to pay the said amount, W/ro Wude has the right to claim payment. But W/ro Wude cannot demand the dissolution of the legacy made to Ato Chala unless the testator orders this clearly in his/her will.
For more details read Civil Code Articles 920 — 923
Substitutio vulgariswas very common in Roman wills. An alternative heir was appointed in the event that the person instituted as the primary heir failed to become the heir (e.g. because he/she died before the testator or refused the inheritance). According to the Ethiopian Civil Code, Substitutio vulgaris is the situation where the testator orders another person to take the legacy in cases where the appointed universal or singular legatee fails to appear and receive what the testator allocates to him/her. The causes for the disappearance of the appointed legatee could vary from case to case. (See Article 928).
The concept similar to entail existed in Roman law. It was also common in many parts of Europe. It is a restriction of inheritance to a limited class of descendants for at least several generations. It is mainly linked with real estate. The object of entail is to preserve large estates in land from the disintegration that is caused by equal inheritance by all the heirs and by the ordinary right of free alienation (disposal) of property interests. Many changes have been developed regarding entails in the law of successions. In some countries, (E.g. England) the law permits the holder of entailed property (either real or personal) to dispose of it bydeed; otherwise the entail persists. In the United States for the most part entails are either altogether prohibited or limited to a single generation.
In Ethiopia, the testator has the power to order that his/her heir and/or his/her legatee shall hand over the legacy to one or more persons after such heir and/or legatee has benefited with the legacy. The testator may order the heir and/or legatee to transfer the legacy (or even portion of it) to the specified person(s) upon the following conditions:
On the expiry of a certain period, for example, after 5 years from the opening of the succession;
Upon the death of the heir or the legatee; and,
On the accomplishment of a certain condition, for instance, when the testator's little daughter gets married.
Entail is not widely practiced in the life of the society. Therefore, instead of discussing it, in detail, the following important points will be provided on the rest of the articles dealing with entail.
Once the legacy is transferred into the hands of the holder entail, the holder entail needs to expect to have only a usufruct right on the legacy. Since he/she is not a true successor, the law does not vest him with powers of an owner of the property. Therefore, the holder entail cannot alienate (sell or donate) the property to third parties. Moreover, the holder should not have any attachment with such property for his/her debts (Art. 931 (1)).
Courts are generally empowered to order the alienation or transfer of a property or its attachment, if such order is justifiable. However, in no case can the court authorize the alienation or attachment of the property in the hands of the holder entail. Because, the holder entail is obliged to utilize the property by taking all the necessary care not to cause a serious damage to the property and finally hand it over to the true successor upon the opening of the substitution (Art 932).
The testator has the right to regulate only until the property is transferred to the person who is called to succeed. Once the property is transferred to the person who is called to succeed the testator loses the right to pass any order concerning the property (Art 934).
In the case where the holder entail refuses to take the legacy or if he/she loses capacity to succeed, for instance, by being unworthy, the person called to succeed shall be called to take the legacy. However, the testator may vary such by an otherwise order (Art 935).
With respect to the contents of Art 936, there is lack of clarity. Moreover, there is a discrepancy between the Amharic and English versions of Art 936(2). Generally, it seems that the law has allowed the holder entail to exercise a full right on the property if it is absolutely clear that the substitution cannot take place.
In the Ethiopian law of successions, the testator has wider rights to disinherit one or more of his/her heirs by the will he/she makes. His/her rights may even go to the extent of disinheriting all of his/her children. Disherison is an order passed by the testator to exclude his/her heirs from the succession. It usually serves as a means of punishment for the misbehavior of his/her heirs. Some people argue that giving powers to the testator to the extent of disinheriting his/her heirs is not proper. At present time, in many countries the power of the testator to disinherit his/her heirs has been reduced or there are many conditions to be fulfilled to disinherit, especially a child. In many jurisdictions in the US, the powers of the testator to disinherit heirs, including children is still effective. The situation is different in most European jurisdictions. In Ethiopia, the law allows the testator to disinherit one or more of his/her heirs. It seems that the law considered that the testator’s only power as far as punishing disobedient children is disinheriting such children.
The testator may disinherit his/her heir either expressly or tacitly. Express disherison is a kind of disherison in which the testator excludes his/her heir from the succession in an explicit manner by stating clearly that he/she has disinherited the heir. The testator may disinherit all of his/her heirs (descendants and other heirs) expressly and appoint a universal legatee. For instance, Ato Wagaw may disinherit all his children and other heirs and he may appoint his friend Gosaye as a universal legatee. In such a case, Gosaye is called to receive the whole estate of Ato Wagaw without any contender. If the testator disinherits all his/her heirs and if he/she does not appoint someone as a universal legatee, there shall be no one to take his/her hereditary estate. In such circumstances, the law has devised a mechanism to enable the descendants of such disinherited heirs to take the property of the testator by way of representation (See Art 937).
Descendants can only be disinherited expressly. That is, no descendant may be disinherited tacitly. Moreover, the testator shall clearly state a justifiable reason why he/she has decided to disinherit his/her descendants. The law makes such imposition on the testator with the view to protect the interest of the descendants in succeeding their ascendants.
It is stated above that the testator must give justifiable reason(s) to disinherit one or more of his/her descendants. The law does not list down what things are justifiable and not justifiable. A justifiable reason is a subjective standard. It is believed that it should impress a reasonable person. It should be a reason that is sufficient to move the testator to the decision of disinheriting his/her descendant. The testator is expected to attribute some acts of the heir that have dissatisfied him/her. If the acts done by the heir were not illegal and/or not immoral, it would be difficult to the testator to give justifiable reasons.
The court has a power to examine and decide whether the reason given by the testator is justifiable or not. Although the court has the power to ascertain whether the reason given is justifiable or not, it cannot ascertain whether the given reason is true or false. Any statement that the testator gives is a true statement. Therefore, the heir cannot claim that the statement of the testator is untrue.
It is clear that the succession of the testator shall open after he/she is dead. A dead person cannot express anything and he/she cannot defend himself/herself if someone claims that the statement of the testator is false. Therefore, it is not possible to pass a decision by hearing only one party. Because of this, the law simply presumes that any reason given by the testator is a true statement. Moreover, the law trusts parents (or ascendants more than any other persons regarding matters relating to their children (or descendants). Therefore, the law takes for granted what has been stated by the testator as a true statement.
When the testator does not make someone beneficiary in his/her will, we say that he/she has tacitly disinherited such a person. However, this kind of tacit disinheritance does not work against descendant heirs. It works only against the heirs of second, third and fourth relationship. This is a mechanism of protection given by the law to the descendant heirs (See Art 939 (1) & (2)).
If the testator appoints someone as a universal legatee to receive the whole property, that does not imply the disherison of the children of the testator. In such a case, the universal legatee is called to succeed the testator as if he/she is one of his children (See Art 939 (3)).
W/ro Gelane has appointed in her last will Ato Bereket to take her hereditary estate as a whole. She has two children, Meskerem and Wodessa. She gave nothing to her children. As it is not allowed to tacitly disinherit children, Ato Wodessa cannot take the whole property of the succession. Instead, he would be considered as one of the children of W/ro Gelane and shall partake the property together with them.
Disinheriting heirs is a legally recognized power of the testator. However, if the law considers that the provisions of the will are defective with respect to any matter, and if the heirs impugn the defective provision, then the provision that disinherits the heirs shall be of no effect. For instance, assume that one of the provisions of a will contains an illicit provision. If this same will contains a provision that disinherits one or more of the heirs of the testator, only by challenging the illicit provisions, the disinherited heirs can get the invalidation of the disherison.